C P .............................225 O /A P .............................224B.T U T T S O ..............................224A.T .T D J A R T S O ..................222 D J A I S T O ” O ............220V.T B C-59 “C T O C S F ................................

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It is argued that neither the approach taken to terrorist speech in Bill C-51 nor Bill C-59 is satisfactory. A case study of the Othman Hamdan case, including his calls on the Internet for “lone wolves” “swiftly to activate,” is featured, along with the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan’s acquittal suggests that the new Bill C-59 terrorist speech offence and take-down powers based on counselling terrorism offences without specifying a particular terrorism offence may not reach Hamdan’s Internet postings. One coherent response would be to repeal terrorist speech offences while making greater use of court-ordered take-downs of speech on the Internet and programs to counter violent extremism. Another coherent response would be to criminalize the promotion and advocacy of terrorist activities (as opposed to terrorist offences in general in Bill C-51 or terrorism offences without identifying a specific terrorist offence in Bill C-59) and provide for defences designed to protect fundamental freedoms such as those under section 319(3) of the Criminal Code that apply to hate speech. Unfortunately, neither Bill C-51 nor Bill C-59 pursues either of these options. The result is that speech such as Hamdan’s will continue to be subject to the vagaries of take-downs by social media companies and immigration law.

T^{ABLE OF} C^ONTENTS

I. INTRODUCTION. . . 204

A. O^UTLINE . . . 206

II. T^HE CONSTITUTIONAL AND S^TRATEGIC FLAWS OF THE B^ILL C-51 “ADVOCACY OF T^ERRORISM OFFENCES IN G^ENERAL”O^FFENCE . . . 208

III. T^HE O^THMAN H^AMDAN C^ASE . . . 210

A. T^HE RCMPINVESTIGATION. . . 210

B. O^THMAN H^AMDAN’^S F^ACEBOOK P^OSTS. . . 211

C. C^RIMINAL C^HARGES . . . 212

D. IMMIGRATION DETENTION AND DEPORTATION A^TTEMPTS. . . 216

E. S^UMMARY . . . 219

IV. T^HE CONSTITUTIONAL AND S^TRATEGIC F^{LAWS OF} THE B^ILL C-59“COUNSELLING T^ERRORISM OFFENCES WITHOUT IDENTIFYING A S^PECIFIC T^ERRORISM O^FFENCE”O^FFENCE . . . 220

V. T^{OWARDS A} DEFENSIBLE AND J^USTIFIED A^PPROACH TO REPEALING THE T^ERRORIST S^PEECH O^FFENCE . . . 222

VI. T^{OWARDS A} DEFENSIBLE AND J^USTIFIED A^PPROACH TO A T^ERRORIST S^PEECH O^FFENCE. . . 224

A. T^HE UNSPECIFIED T^ERRORIST O^FFENCE/A^CTIVITY P^ROBLEM . . . 224

B. T^HE COUNSELLING P^ROBLEM . . . 225

* Professor of Law and Prichard-Wilson Chair in Law and Public Policy, University of Toronto, and Faculty, Centre for Transactional Legal Studies, London, United Kingdom, where an earlier version of this article was presented at a conference on Hate Speech in Times of Crisis.

C. THE FREE SPEECH PROBLEM

AND THE ROLE OF DEFENCES. . . 226 D. THE NEED FOR STRONGER AND

BROADER INTERNET TAKE-DOWNS . . . 227 VII. CONCLUSION . . . 229

I. INTRODUCTION

The terrorism speech offence in Bill C-51 was only a small part of its massive and radical restructuring of national security legislation enacted in response to two terrorist attacks in October 2014. Nevertheless, it was in many respects emblematic of the Stephen Harper government’s counterterrorism strategy. Prime Minister Harper argued that violent jihadism

“is not a human right … [but] an act of war,”¹ and his Attorney General Peter Mackay explained that the new speech offence encompassed those who actively encouraged unspecified actions “to do something bad against Canadians or our allies, or to do something to support extreme jihadism.”²

The Conservative government responded to the 2014 acts of terrorism by a variety of hard measures, including giving CSIS a mandate to take threat reduction measures up to and including violating the Canadian Charter of Rights and Freedoms.³ It had little time for softer and sociological strategies of countering violent extremism (CVE) despite their endorsement in 2014 by the United Nations Security Council in Resolution 2178.⁴ The Bill C-51 offence of advocating or promoting “terrorism offences in general” while knowing or being reckless as to whether any of terrorism offences would be committed as a result of the communication was primarily an expressive or symbolic offence meant to denounce extremism.⁵ Any use of the Bill C-51 speech offence would have attracted a challenge under the Charter. In some respects, that may have been the government’s point.

During the debate, the Liberal Party took the equivocal position that while it would support Bill C-51, it would, if elected, amend it with special attention to respecting the Charter. After having produced a Green Paper on National Security that in many respects offered a bureaucratic defence of Bill C-51 that was not made when it was enacted,⁶ the Justin Trudeau government introduced Bill C-59 in June 2017 with it only finally being enacted in June 2019 before Parliament dissolved for the 2019 election.

1 Janyce McGregor & Kady O’Malley, “Stephen Harper Makes His Case for New Powers to Combat Terrorism,” CBC News (30 January 2015), online: <www.cbc.ca/news/politics/stephen-harper-makes- his-case-for-new-powers-to-combat-terror-1.2937602>.

2 Cited in Craig Forcese & Kent Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto: Irwin Law, 2015) at 337 [Forcese & Roach, False Security].

3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

4 Resolutions and Decisions of the Security Council, UNSCOR, 70th year, UN Doc S/INF/70 (2014) 211 at 215.

5 Criminal Code, RSC 1985, c C-46, s 83.221, as amended by the Anti-terrorism Act, 2015, SC 2015, c 20, s 16.

6 Government of Canada, Our Security, Our Rights: National Security Green Paper, 2016 (Ottawa: Her Majesty the Queen in Right of Canada, 2016).

Bill C-59’s revision of the speech offence was again a political focus point of the debates.⁷ For the Conservative opposition, the revised bill was a sign that the Trudeau government was soft on terrorism whereas for the government it was a sign of their respect for the Charter.

For the NDP, the failure to repeal the speech offence in its entirety was a sign of the Liberals’

“two-faced” approach “of saying one thing and doing the opposite.”⁸ The Trudeau government’s approach to terrorism has been characterized by an unwillingness to be placed at a political disadvantage by being depicted as soft on terrorism combined with a desire to be seen as complying with the Charter.⁹ As discussed in other articles in this issue, Bill C-59 retains CSIS’s new ability to take steps to disrupt and reduce threats to national security and much of its broad information-sharing law. At the same time, the Trudeau government has shown more interest in CVE than the Harper government by creating the Canada Centre for Community Engagement and Prevention of Violence.¹⁰

The new terrorist speech offence in Bill C-59, no less than the old speech offence, is emblematic of the government’s counterterrorism policy. On the one hand, it seeks to ensure compliance with the Charter by replacing the Bill C-51 wording of “promoting and advocating” with a narrower and more traditional reference to “counselling.” This change was made despite the 2017 decision of R. v. Hamdan that interpreted counselling restrictively so as not to apply to Internet speech that praised the September 2014 terrorist attacks in Canada and called for more of them.¹¹ The counselling requirement in Bill C-59 may mean that such speech will not be subject to criminal sanction or court-ordered deletion as terrorist propaganda under Bill C-59.

On the other hand, Bill C-59 stops short of repealing the terrorist speech provision. It replaces the provocatively broad, undefined, and vague reference to “terrorism offences in general” in Bill C-51 with the still undefined and vague concept of counselling “a terrorism offence without identifying a specific terrorism offence.”¹² Although designed to cover generic calls for terrorism of the type seen in Hamdan, the new offence in section 83.221 of the Criminal Code is no clearer than the old and controversial Bill C-51 formula of

“terrorism offences in general.” What is clearer is that the new Bill C-59 offence requires proof of counselling as was also required in Hamdan.

It is, of course, easy to criticize the counterterrorism laws and policies of governments.

The more difficult question is what improvements can be made. Compliance with the Charter is a necessary step, but hardly a sufficient one. One possible approach not taken in either Bill C-51 or C-59 would be to model a terrorist speech offence on hate propaganda provisions in section 319 of the Criminal Code and the definition of terrorist activity in section 83.01(b) of the Criminal Code, both of which have been upheld as consistent with

7 The new Bill C-59 offence provides: “Every person who counsels another person to commit a terrorism offence without identifying a specific terrorism offence is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years” (Criminal Code, s 83.221, as amended by the National Security Act, 2017, SC 2019, c 13, s 143).

8 “Bill C-59, an Act respecting national security matters,” 2nd Reading, House of Commons Debates, 42- 1, vol 148 No 234 (20 November 2017) at 1315 (Alexandre Boulerice).

9 See for example its support of a Conservative motion suggesting that foreign terrorist fighters that returned to Canada should be prosecuted: House of Commons Debates, 42-1, vol 148 No 339 (22 October 2018) and House of Commons Debates, 42-1, vol 148 No 340 (23 October 2018).

10 “Canada Centre for Community Engagement and Prevention of Violence,” online: Public Safety Canada <www.publicsafety.gc.ca/cnt/bt/cc/index-en.aspx>.

11 2017 BCSC 1770 [Hamdan].

12 National Security Act, 2017, supra note 7.

the Charter.¹³ The fact that a terrorist speech offence could be successfully defended under the Charter, however, does not establish that it should be enacted or that it will make a necessary contribution to counterterrorism policy.¹⁴ This is especially true with respect to speech-based terrorism offences, which will remain extremely difficult and risky types of prosecutions regardless of how any specific offence is defined.

I will suggest that there are two viable and Charter-compliant approaches to terrorist- related speech. The first would be to accept that while vile and objectionable, most of the speech praising terrorism is “terrorist babble” that should not be criminal.¹⁵ Instead we should rely on non-criminal instruments ranging from social media censorship to CVE intervention. The second alternative would be to criminalize and provide for state censorship of speech that advocates, promotes, or instructs the commission of a terrorist activity. Such a broad approach that goes beyond the concept of counselling should, however, be balanced by the same type of defences available in section 319(3) of the Criminal Code for wilful promotion of hate propaganda to ensure respect for freedom of expression and freedom of religion.

In the end, the choice between the decriminalization option and the option modelled on hate speech and terrorist activity provisions is a tough call. It could legitimately be based on political preferences as determined by the policy preferences of the elected federal government. Alas, Bill C-59, like Bill C-51 before it, fails to take either of these constitutionally compliant and democratically defensible approaches.

A. OUTLINE

Part II will examine and criticize the “advocacy and promotion of terrorism offences in general” offence enacted in Bill C-51. It will suggest that the undefined reference to

“terrorism offences in general” was vague and overbroad. Bill C-51 borrowed selectively from hate speech provisions, but failed to include its high mens rea requirement, its exclusion of private conversations, or the broad range of defences designed to protect freedom of expression and freedom of religion that the Supreme Court of Canada deemed critical to their justification as a reasonable limit on fundamental freedoms.

Part III will provide a case study of the Othman Hamdan case. Hamdan’s Facebook postings praising acts of terrorism such as the 22 October 2014 attack on Parliament, pledging his support for Daesh, and calling for “lone wolves [to] activate all across #USA”

attracted the attention of Facebook and the RCMP.¹⁶ Facebook was fairly successful in taking down Hamdan’s posts: it deleted most of Hamdan’s 14 accounts. The RCMP was less successful. After two brief discussions with him, the RCMP charged Hamdan with counselling murder, assault causing bodily harm, mischief to property, and knowingly instructing the carrying-out of a terrorist activity under section 83.22 of the Criminal Code.

Hamdan was acquitted of all counts by Justice Butler of the British Columbia Supreme Court

13 See R v Keegstra, [1990] 3 SCR 697 [Keegstra]; R v Khawaja, 2012 SCC 69 [Khawaja].

14 Kent Roach, “The Dangers of a Charter-Proof and Crime-Based Response to Terrorism” in Ronald J Daniels, Patrick Macklem & Kent Roach, eds, The Security of Freedom: Essays on Canada’s Anti- Terrorism Bill (Toronto: University of Toronto Press, 2001).

15 Craig Forcese & Kent Roach “Criminalizing Terrorist Babble: Canada’s Dubious New Terrorist Speech Crime” (2015) 53:1 Alta L Rev 35 [Forcese & Roach, “Terrorist Babble”].

16 Hamdan, supra note 11 at para 81.

in 2017, but he was kept in immigration detention. The Immigration and Refugee Protection Board ruled in 2018 that the same 85 Internet posts that were the basis of his criminal charges established that the Minister reasonably believed that Hamdan was a threat to the security of Canada. As a result, the Minister revoked Hamdan’s refugee status and ordered him to be deported to Jordan, something that he continues to contest. The Hamdan case provides important information about the reality of terrorist-related speech, the difficulties of prosecuting it, and the dangers of relying on less restrained alternatives to prosecution.

Part IV will examine the constitutional and strategic infirmities of the approach now taken in Bill C-59 to criminalize the counselling of terrorism offences without identifying a specific terrorism offence. Drawing on the Hamdan case study, it will suggest that the new Bill C-59 offence may be underinclusive in only allowing material that counsels another person to be criminalized or subject to court-ordered deletion from the Internet. Bill C-59 does not solve the problem of responding to the type of unspecific and generic calls and threats of terrorism seen in Hamdan. At the same time, its attempt to respond to this issue is unclear and may provoke a Charter challenge.

The last two sections will outline two different but justifiable approaches to terrorist speech that differ from those taken in Bill C-51 and Bill C-59. Part V will examine the option of repealing the terrorism speech offence while investing more in CVE and ensuring take- downs of terrorist material on the Internet. This approach does not mean that all terrorist- related speech will be tolerated. Existing offences against counselling specific crimes, issuing threats, and engaging in hate propaganda would still apply.

An alternative discussed in Part VI would be to retain Bill C-51’s commitment to criminalizing speech that promotes and advocates terrorism while adding defences that would allow the accused to establish defences of truth, good faith arguments about religion, and discussion of public interest matters borrowed from the hate propaganda provisions in the Criminal Code. To be sure, such an approach would violate sections 2 and 11(d) of the Charter, but there would be a good chance that such limits on rights could be justified as reasonable and proportionate under section 1 of the Charter.¹⁷

Under either approach, speech-based terrorism prosecutions would rightly remain difficult. This underlines the need for broader in rem remedies to allow court-ordered deletion of a broader range of terrorist propaganda from the Internet. Unfortunately, the deletion provisions in Bill C-59 have been reduced to only include material that actually counsels terrorism offences, without even the qualification of not necessarily identifying a specific terrorism offence.¹⁸

To be sure, any court-ordered deletion procedure will remain far from the front lines in an ongoing battle with terrorist propaganda that is primarily being waged by social media companies such as Facebook and Twitter. Indeed such private deletion efforts may be accelerated in light of the Christchurch call supported by Canada and many other democracies (but not the United States) and tech giants such as Facebook and Twitter.¹⁹

17 Keegstra, supra note 13.

18 National Security Act, 2017, supra note 7, s 144.

19 “Christchurch Call to Eliminate Terrorist & Violent Extremist Conduct Online,” online: Christchurch Call <www.christchurchcall.com>.

There is a need for greater study of how the tech giants now act as front-line censors and the degree to which they may be influenced by public regulation.

II. THE CONSTITUTIONAL AND STRATEGIC

FLAWS OF THE BILL C-51 “ADVOCACY OF

TERRORISM OFFENCES IN GENERAL”OFFENCE

In the immediate aftermath of the October 2014 terrorist acts, the Harper government expressed interest in criminalizing the praise or glorification of terrorism. These initial suggestions were inspired by sections 1 and 2 of the United Kingdom’s Terrorism Act, 2006.²⁰ Despite its initial interest in such broad offences, the Conservative government enacted a narrower speech-based crime in Bill C-51, which provided:

Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.²¹

This offence was a Charter-inspired retreat from European-style offences of glorification or apologia of terrorism. The new offence required proof of subjective fault in the form that the accused “knowingly” advocate or promote and either know or be “reckless” as to whether a terrorist offence “may be committed” as a result of this speech. This was a lower form of fault than many of the other terrorism offences enacted in the 2001 Anti-Terrorism Act that required proof of the higher subjective requirement of a terrorist purpose.²²

One model for the new Bill C-51 speech offence may have been offences against advocating genocide or underage sex. The problem, however, is that these crimes are fairly narrowly defined whereas the C-51 offence was based on advocating or promoting “terrorism offences in general.” This phrase was not defined in Bill C-51. It would seem to include, at the least, terrorism offences as defined in section 2 of the Criminal Code, which include a range of Criminal Code offences including those related to terrorism financing. This meant that speech such as “support terrorist group X” that the speaker was aware created the possibility that someone may send money to that group fell within the ambit of the Bill C-51 offence. This then suggested that the offence includes protected expression that is not excluded from section 2(b) of the Charter as either violence or threats of violence.²³ Such a conclusion would require the state to then justify the broad offence as a reasonable limit under section 1 of the Charter.

The Bill C-51 offence in section 83.221 of the Criminal Code would be difficult to justify under section 1 of the Charter. Although courts would accept that deterring and denouncing

20 The United Kingdom has continued to regulate speech related to terrorism with extremely broad new offences relating to speech that supports a proscribed organization or that arouses a reasonable suspicion that a person is a member or supporter of a proscribed organization: Counter-Terrorism and Border Security Act 2019, (UK), ss 1–2.

21 Criminal Code, supra note 5, s 83.221(1).

22 See for example the requirement in section 83.18 of the Criminal Code, ibid, that people “knowingly”

participate in any activity of a terrorist group “for the purpose of enhancing” its ability to facilitate or carry out a terrorist activity.

23 Khawaja, supra note 13.

terrorist violence was an important objective, it is not clear that prohibiting the advocacy or promotion of “terrorism offences in general” would be rationally connected to this objective.

The government could argue for a broader objective such as disapproving of extremist speech, but the Supreme Court of Canada has so far rejected such attempts to inflate the purpose of counterterrorism provisions.²⁴

There are a broad range of less rights-invasive options. For example, the wilful promotion of hatred offence that provided a model for section 83.221 of the Criminal Code exempts statements made in “private conversation”²⁵ and has various free speech, free religion, and public interest defences.²⁶ All of these provisions could be examples of less rights-invasive ways to pursue the objective of Bill C-51’s new terrorist propaganda offences and deletion procedures.

Finally, the overall balance achieved by Bill C-51 was in doubt given that it might include speech that was not directly related to terrorist violence. Moreover, the benefits of a prosecution with a maximum five-year sentence to preventing terrorism or stemming the tide of terrorist-related speech or terrorism were not clear. The adverse effects of the C-51 offence on freedom of expression, however, were quite clear, especially the potentially chilling effects of the undefined reference to “terrorism offences in general.”

Why did the government select the undefined and provocatively vague concept of

“terrorism offences in general”? One clue is found in the 2016 Green Paper issued by the Trudeau government that provided as an example of speech that might be targeted by the new offence a video statement by a person dressed in military clothing to her followers to

“take direct action.… Do not wait for us to tell you what to do. From now on, you have permission to do whatever you want, do whatever is in your capability. Just act.”²⁷ The Green Paper elaborated that the Bill C-51 speech offence “extends the concept of counselling to cases where no specific terrorism offence is being counselled, but where it is evident nonetheless that terrorism offences are being counselled.”²⁸ It is far from clear, however, that such extortions to take “direct action” or “just act” necessarily were calling on listeners to commit any activity that would constitute any terrorist offence. Context matters. The direct action called for in the Green Paper example could be either a bombing or a protest. The choice to wear military clothing could be an implicit call to arms or a fashion choice. Any terrorist speech prosecution would be uncertain and context-dependent.

Events subsequent to the Green Paper and the introduction of Bill C-59 now provide concrete and public examples of the type of terrorist-related speech that the government in Bill C-51 was aiming to prohibit. It is important, especially in the national security field where commentators are only able to see partial and public evidence, to consider such new evidence in formulating policy. Unfortunately, there was little discussion of Hamdan as Bill C-59 was debated even though the case provided critical information about the nature of

24 Application under s 83.28 of the Criminal Code (Re), 2004 SCC 42.

25 Criminal Code, supra note 5, s 319(2).

26 Ibid, s 319(3).

27 Government of Canada, Our Security, Our Rights: National Security Green Paper, 2016 – Background Document (Ottawa: Her Majesty the Queen in Right of Canada, 2016) at 42.

28 Ibid.

terrorist speech and the limits of the counselling requirement.²⁹ Hamdan provides a concrete example of the concerns expressed by the Harper government when enacting Bill C-51 about unspecific calls to terrorism, as amplified by the Trudeau government’s 2016 National Security Green Paper.

III. THE OTHMAN HAMDAN CASE

A. THE RCMPINVESTIGATION

Othman Hamdan came to Canada in 2002 from the United States and was granted refugee status in Canada in 2004. Hamdan eventually moved to the remote British Columbia town of Fort St. John, where he was not active or even known to the local Muslim community of about 100 persons until his arrest.³⁰ Hamdan first came to RCMP attention during Project Savvy, a non-targeted examination of open media postings started after the Parliament Hill terrorist attack on 22 October 2014.

The RCMP found Hamdan’s Facebook posts expressing admiration for the October 2014 terrorists and Daesh to be alarming. Hamdan was interviewed by two uniformed RCMP officers in the remote northern community of Fort St. John, British Columbia, on 19 November 2014. Little is known about this interview other than the two RCMP officers were in uniform and they did not make extensive notes. Two different RCMP officers interviewed Hamdan a second time on 1 April 2015, this time at a Tim Horton’s where they bought him coffee and a muffin.³¹ In ruling that his statements to the police were voluntary, the trial judge observed that Hamdan was

a ready and willing conversationalist. He wanted to discuss his online activities and political views with the police. He was anxious to educate the police about the inaccurate reporting by the Western media of the conflict in Syria. He was keen to point out the errors of the Canadian and Western governments as well as the positive attributes of ISIS. He was happy to discuss the Facebook posts.³²

By February 2015, the RCMP had started a more focused investigation of Hamdan called Project Scollop. Extensive resources appear to have been devoted with production orders under the Criminal Code and a Mutual Legal Assistance Treaty (MLAT) request being made to Facebook in the United States. Unfortunately, the RCMP used non-forensic software that did not allow them to capture and preserve the full Facebook posts. The August 2015 American reply to Canada’s April 2015 MLAT request was also unable to replicate Hamdan’s full posts. Despite the captured posts being “truncated and incomplete,” the trial judge admitted 85 Facebook posts as the best evidence available.³³ He also found that the missing material from the Internet was not lost through unacceptable negligence in violation

29 A search of the words “Othman Hamdan” on the Parliamentary website revealed no discussion of the case as of 10 June 2019. The omnibus nature of the bill may also have inhibited debate, and I confess my own brief to the House of Commons committee studying the bill did not include a discussion of Hamdan because I had not completed my research on Hamdan.

30 Kim Bolan, “Terror Suspect Operated a Construction Business; Othman Hamdan, Charged with Counselling Murder for ISIL, Had Few Connections in Fort St. John, Sun Investigation Finds,” The Vancouver Sun (14 July 2015) A6. Hamdan has claimed at various times he has converted to Christianity.

31 R v Hamdan, 2017 BCSC 61 at paras 4–7.

32 Ibid at para 58.

33 R v Hamdan, 2017 BCSC 676 at para 78.

of section 7 of the Charter.³⁴ The case, however, does reveal some of the challenges of prosecuting speech made on the dynamic Internet.

Hamdan was arrested in Fort St. John, British Columbia, on 10 July 2015 by between 10 and 12 RCMP officers, including members of an Integrated National Security Team. The investigation was led by different officers than those who had interviewed him in November 2014 and April 2015. Hamdan was charged with counselling murder, counselling assault causing bodily harm, and counselling mischief to property for the benefit of a terrorist group under sections 464 and 83.2 of the Criminal Code and instructing a terrorist activity under section 83.22. As the trial judge noted in holding that a brief delay in informing Hamdan of the charges he faced was warranted, such charges were “very serious and out of the ordinary.”³⁵

Hamdan faced a maximum penalty of life imprisonment for the most serious charge he faced: counselling murder. This was far more than the maximum penalty of five years’

imprisonment he would have faced under the new advocacy and promotion of “terrorism offences in general” offence in Bill C-51 that was proclaimed in force shortly after Hamdan’s arrest. This meant that the new Bill C-51 offence could not be applied retroactively to posts he made before its enactment. It also illustrates how the Criminal Code treats counselling as a more serious offence that is tied to the offence being counselled or incited as opposed to offences based purely on speech that promotes and advocates but does not actively encourage people to commit a particular crime.

B. OTHMAN HAMDAN’S FACEBOOK POSTS

The RCMP knew that Hamdan’s Facebook postings over a period of ten months from 22 September 2014 to 9 July 2015 “included references to ‘lone wolf’ attacks, the use of explosives and firearms, and to potential Canadian ‘targets’ for terrorist attacks.”³⁶ The posts also commented on matters of politics and religion and matters of whether acts in Syria and Iraq constituted terrorism.

Hamdan’s Facebook posts included salutes to “lone wolves” who committed terrorist attacks, including the October 2014 terrorists in Canada.³⁷ He similarly praised terrorists when he wrote: “Gun shots fired at NSA building … lone wolves we salute you” and “[t]hree shot outside an American Islam phobic competition … lone wolves we salute you.”³⁸

Hamdan also seemed to indicate his willingness to engage in acts of terrorism. He wrote:

“I am here for the support of the mujuhadeen … terrorizing of the enemy .. until God grants me martyrdom .. with a car with buttons.”³⁹ He also posted “Islamic state .. I am one of them,” “Dear muslim brother and sister … the Islamic State is the solution to all our

34 Ibid at para 108. The trial judge warned, however, that “if the police procedures do not improve, subsequent decisions may find the police action to be unreasonable” (ibid at para 113).

35 R v Hamdan, 2017 BCSC 467 at para 24.

36 Ibid.

37 These posts included references to a “Muslim brother is martyred after killing Canadian solider,” “stay here and bring the fight to their towns” and “[s]econd attack in as many days — you can thank Harper and his support of sectarian militias in Iraq” all made on 22 October 2014 with a subsequent description of one of the attackers as “the real hero” (see Hamdan, supra note 11, Schedule A, Posts 9-13, 18).

38 Ibid, Schedule A, Posts 43, 59.

39 Ibid, Schedule A, Post 37.

problems .. we muslims will support it and establish the caliphate state,” and “when I migrate I will go surely to ISIS.”⁴⁰

Hamdan not only praised acts of terrorism and indicated his desire to engage in acts of terrorism. His posts included statements closer to incitement or counselling terrorism such as “[m]y Muslim brother. Be a terrorist … Scaring the enemies of God”; “let’s stay here and bring the fight to their towns!”; and “our advice to supporters in the #US … carry your actions there … swiftly lone wolves activate all across #USA.”⁴¹

Hamdan also provided information that would be useful to those prepared to commit acts of terrorism in Canada and abroad. He posted observations about possible sites for terrorist attacks in Canada, noting that they were not well-guarded and that Muslims could purchase firearms and explosive licences for under $200. He posted detailed instructions about weapons, targets, forms of clothing to be worn, and transportation to be used to facilitate terrorist acts of violence in Egypt.

Hamdan’s posts were made from 14 different Facebook accounts with many of the posts, re-posts, and accounts being deleted by Facebook. Unfortunately the judgments in the case provide little information about how Facebook became alerted to the posts and how it decided to delete the posts and the accounts that Hamdan used.⁴²

Facebook’s actions in this case are important, but less than transparent. In any event, Hamdan saw Facebook as his main nemesis. He testified that Facebook was “biased against Islam” and warned Facebook “the safety of your employees has already been determined by your actions!!”⁴³ This threat against Facebook, like Hamdan’s reposting of calls to “lone wolves” to “swiftly … activate,” were lacking in specifics.

As will be seen below, only one of Hamdan’s 85 posts — the one calling for lone wolves swiftly to activate — was held to constitute the actus reus of counselling. In contrast his calls for Daesh-inspired violence and threatened violence against Facebook were subsequently held by the Immigration and Refugee Protection Board to be evidence that Hamdan as a non- citizen previously granted refugee status was a threat to the security of Canada.

C. CRIMINAL CHARGES

Criminal charges in respect to counselling murder, assault, and mischief were laid against Hamdan. Section 22(3) of the Criminal Code defines counselling as procuring, soliciting, or inciting. The Supreme Court has in R. v. Hamilton interpreted counselling as “deliberate encouragement or active inducement of the commission of a criminal offence.”⁴⁴

The trial judge stressed the difficulty of assessing the true meaning of Hamdan’s social media posts. Even with the assistance of competing expert evidence, “the depth and complexity of the political and religious issues touched on by Mr. Hamdan’s posts make it

40 Ibid, Schedule A, Posts 48, 53, 83.

41 Ibid at para 81.

42 Ibid at para 4.

43 Ibid at para 23 and Schedule A, Post 57.

44 2005 SCC 47 at para 29 [Hamilton].

difficult to discern the clear meaning of many of the posts.”⁴⁵ The nature of social media was relevant to the trial judge’s decision to acquit. He stressed that the 85 key posts offered as evidence by the Crown were “small segments from a series of social media dialogues taking place over 10 months on 14 different Facebook accounts … it is not logical or reasonable to selectively choose from such a large body of comments over many months and assert that they should be read together to infer active inducement.”⁴⁶ For example, the trial judge held that three posts describing two unguarded sites in Canada and explaining that Muslims could purchase a licence for firearms or explosives for less than $200 offered in relating to the counselling mischief to property charge should not be interpreted in light of the other posts that indicated a support for and even encouragement of terrorism. Justice Butler concluded that these three informational posts did not actively induce the commission of mischief to property and thus did not amount to even proof of the actus reus of counselling.⁴⁷ The judge seemed to ask whether each post taken on its own terms satisfied the definition of counselling.

Justice Butler also held that “repugnant” posts that praised or glorified terrorist acts, including saluting the September 2014 terrorist attackers, did not amount to counselling because they did not include

active inducement or encouragement for a reader to go and commit similar acts. There is a significant difference between a message that says, “the lone wolf attacks in Canada are happening because of wrongheaded government policies” and one that incites or induces a reader to “seek martyrdom by committing lone wolf terrorist acts similar to those of Mr. Rouleau or Mr. Zehaf-Bibeau”. Mr. Hamdan did the former, not the latter. The former is an expression of a political point of view; the latter is the act of counselling an offence.⁴⁸

Counselling does not include praise of past acts of terrorism.

Posts that did not even amount to the actus reus of counselling murder or assault included a cartoon created by Hamdan that “suggests that if the USA is arresting Muslims who want to travel to Syria to join ISIS, then jihadists will say ‘…let’s stay here and bring the fight to their towns!’”⁴⁹ This expression seems to come closer to counselling than a cartoon that the European Court of Human Rights held was reasonably criminalized that stated that Hamas dreamed of destroying the World Trade Centre, but bin Laden and Al Qaeda did it.⁵⁰ As will be seen, the Immigration and Refugee Protection Board was also unwilling to interpret Hamdan’s expression of support for terrorism as evidence that he was a threat to the security of Canada under immigration law. This demonstrates a stronger Canadian commitment to freedom of expression than seen in Europe. This may continue to place a fundamental restraint on the degree to which Canada will criminalize terrorist speech. At the same time, the decision-maker will make a difference. The Immigration Board was more willing to

45 Hamdan, supra note 11 at para 102.

46 Ibid at paras 76, 78.

47 Ibid at para 75.

48 Ibid at paras 107–108.

49 Ibid at para 81.

50 Affaire Leroy c France, No 36109/03 (2 October 2008). Note that B’Nai Brith suggested in its brief on Bill C-59 that Canada should borrow from the Council of Europe and criminalize the glorification of terrorism (The League for Human Rights of Bnai Brith Canada, On Bill C-59: Combatting Incitement to Terrorism, by David Matas (B’nai Brith Canada, 2018), online: <www.ourcommons.ca/Content/

Committee/421/SECU/Brief/BR9684919/br-external/BnaiBrithCanada-e.pdf>).

interpret Hamdan’s expressions in a more holistic manner than Justice Butler who, in his decision to acquit Hamdan, examined each of his 85 different posts separately. One suspects a criminal jury might also have taken a more holistic approach.

Justice Butler held that posts where Hamdan appeared to indicate his intent to engage in acts of terrorism did not amount to counselling others to commit such acts. He elaborated:

There is a significant difference between saying, “I am prepared to kill the enemy” and telling others to “go out and kill the enemy”. The former is a statement of one’s personal views and intent. While it may indirectly encourage the commission of an offence, it is not direct encouragement or active inducement. The offence of counselling is limited to direct encouragement.⁵¹

This holding reveals some of the potential differences between counselling-based offences, including the one in Bill C-59 and the Bill C-51 promotion and advocacy offence.

It is possible that a person such as Hamdan who expresses his or her intentions to engage in terrorism could be found to have wilfully or knowingly promoted or advocated terrorism.

Justice Butler found only one of 85 posts to constitute the actus reus or prohibited act of counselling. It was Post 40, a re-posting of a Daesh tweet that “our advice to supporters in the #US … carry your actions there … swiftly lone wolves activate all across the #USA.”⁵² Even Mr. Hamdan recognized in questioning by the RCMP, “[t]hat’s probably the only incriminating post you could have on me.… And it’s — it’s not even my words but that’s … the only one that I see that’s really bad.… Because it says lone wolves activate.”⁵³

At the same time, Justice Butler expressed some reservations about his conclusion that Post 40 amounted to counselling by noting that “the Crown was unable to show not only the intended recipients, possible targets, methods or location of the counselled terrorist attacks but also could not show that ‘the offence was not committed.’”⁵⁴ The unspecified nature of the general incitement for “lone wolves swiftly to activate” also helps explain some of the desire in Bill C-51 to provide for incitement of “terrorism offences in general” or in Bill C-59 for the counselling of terrorism offences without the incitement of a specific terrorism offence. It will be suggested below, however, that neither Bill C-51 nor C-59 have satisfactorily dealt with this tricky problem.

Justice Butler did not resolve his reservations about whether an unspecified call for “lone wolves swiftly to activate” amounted to counselling because he had a reasonable doubt about Hamdan’s mens rea. In reaching this conclusion, he took a holistic approach that gave weight to Hamdan’s political views, which included beliefs “that are contrary to ISIS dogma” and that supported Hamdan’s “contention that his intent in administering the Facebook pages and profiles was to highlight injustice, speak truth to power and generate discussion rather than to further the goals of ISIS or encourage criminal terrorist activity.”⁵⁵ The judge’s approach demonstrates the asymmetry of a liberal criminal law that strives to give the accused the

51 Hamdan, supra note 11 at para 120.

52 Ibid at para 81.

53 Ibid at para 123.

54 Ibid at para 124.

55 Ibid at paras 165–66.

benefit of a reasonable doubt. It suggests that any terrorist speech prosecution, especially for speech on the Internet, will be difficult to sustain.

The Crown decided not to appeal Hamdan’s acquittal given the decision to continue to hold him in immigration detention, but one arguable error of law that Justice Butler may have made was his failure to find clearly that there was a reasonable doubt that Hamdan had a

“conscious disregard of the substantial and unjustified risk inherent in the counselling” in the lone wolves activate post.⁵⁶ Justice Butler stressed the “high standard” of mens rea for counselling.⁵⁷ This is generally appropriate for inchoate offences, but discounts the Supreme Court’s controversial 2005 decision to expand the traditional mens rea for counselling to include not only intent that the offence counselled be committed by others, but “conscious disregard of the substantial and unjustified risk inherent in the counselling.”⁵⁸ Two leading criminal law texts have interpreted this latter standard as the equivalent of recklessness, which is the lowest form of subjective mens rea, as well as one that is used in Bill C-51.⁵⁹

Justice Butler’s conclusion that there was a reasonable doubt that Hamdan had the mens rea required for counselling seems more consistent with Justice Charron’s strong dissent in Hamilton, which stressed that in order to protect freedom of expression, that nothing less than proof of the accused’s intent that others would commit the offence counselled would be sufficient. In my view, this is the best interpretation of counselling as an inchoate offence that applies to expression. Nevertheless, it seems to disregard the decision of the majority of the Supreme Court in Hamilton to also include knowledge of a substantial and unjustified risk as a new, lower, and alternative form of mens rea for counselling.

In the end, Hamdan’s acquittal raises as many questions as it answers. To be sure, it makes clear that the expression of support or praise for terrorism and the expression of a personal willingness to engage in terrorism or participate in the activities of a terrorist group will not constitute even the actus reus of counselling. This provides support for the decision in Bill C-51 to criminalize the broader category of promotion and advocacy. At the same time, Justice Butler correctly indicated that a broader approach to counselling would raise freedom of expression issues.⁶⁰ The acquittal also does not resolve the issue of how far the Supreme Court has, in Hamilton, expanded the mens rea of counselling or whether the counselling of an unspecified type of terrorism will constitute the prohibited act of counselling.

56 Hamilton, supra note 44 at para 29.

57 Hamdan, supra note 11 at para 153.

58 See for example Justice Moldaver’s decision in R v Janeteas, 2003 CanLII 57385 (Ont CA), cited by Justice Charron in her dissent in Hamilton, supra note 44 at para 82.

59 Don Stuart, Canadian Criminal Law: A Treatise, 7th ed (Toronto: Carswell, 2014) at 746; Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5th ed (Markham: LexisNexis, 2015) at 7.109. For a contrary view that Hamilton requires more “than a reckless awareness of the possibility that an offence would be committed,” see Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 163.

60 Hamdan, supra note 11 at paras 41–42.

D. IMMIGRATION DETENTION AND DEPORTATION ATTEMPTS

Hamdan was acquitted on 22 September 2017. He had been detained and denied bail since his arrest on 10 July 2015.⁶¹ This reaffirms how bail is a critical step in terrorism prosecutions and one that often results in prolonged pre-trial detention even for those who may eventually be acquitted of terrorism charges.⁶²

A person such as Hamdan found not guilty of all counts could reasonably expect to be released from custody that day. Yet in another indication of how liberal norms have been challenged by counterterrorism even in established democracies, Hamdan was immediately transferred to the custody of the Canadian Border Service Agency on the day of his acquittal.

Immigration authorities attempted to justify this “heads you lose, tails I win” approach by arguing that immigration inadmissibility proceedings carried a lower burden of proof and had different standards of liability focused on threats to security of Canada.⁶³ These were true statements, but they failed to justify the functional form of double jeopardy that Hamdan faced after his acquittal.⁶⁴

Hamdan was denied bail under section 3(1)(h) of the Immigration and Refugee Protection Act⁶⁵ on public safety grounds with the adjudicator concluding “anyone who actively promotes and calls on people to engage in terrorist activity is engaging in behaviour and conduct that puts the Canadian public in danger, regardless of if that conduct meets the standard necessary to obtain a criminal conviction.”⁶⁶ The adjudicator also concluded that he was satisfied that Hamdan “will continue to be active in the online community by posting your own material and reposting other material that celebrates and encourages acts of terrorism and violence in instances where you believe that such acts are justified.”⁶⁷ If Hamdan had been granted bail before either his criminal or immigration proceedings, it is likely that he would have been subject to requirements to stay off the Internet and other restrictions.⁶⁸ Whether it is granted or denied, bail remains a powerful tool of counterterrorism.

61 William Stodalka, “Terror Suspect Denied Bail,” Alaska Highway News (4 August 2015) A3.

62 Kent Roach, “Be Careful What You Wish For? Terrorism Prosecutions in Post 9/11 Canada” (2014) 40:1 Queen’s LJ 99 at 105–13 (examining other cases of extensive pre-trial detention and acquittal or stays of proceedings on terrorism-related charges).

63 Kim Bolan, “Acquitted ISIS Supporter Fights to Stay in Canada,” The Province (27 September 2017)

64 A4.Similarly peace bond bail-type restrictions appear to have been imposed on John Nuttall and Amanda Korody and were only abandoned after the entrapment-based stay of their terrorism charges was affirmed on appeal (“Crown Drops Bid for Terrorism Peace Bonds on Couple Entrapped in B.C.

Legislature Plot,” CBC News (2 January 2019), online: <www.cbc.ca/news/canada/british-columbia/

crown-drops-bid-for-terrorism-peace-bonds-on-couple-entrapped-in-b-c-legislature-plot-1.4963849>).

65 SC 2001, c 27.

66 Cited in Geordon Omand, “Acquitted Man Remains in Detention,” The Globe and Mail (6 October 2017) S2. It is not clear whether bail should have been denied on the basis of Hamdan being a flight risk.

Although he had lived in several places since coming to North America as an electrical engineering student in 1999, he had lived in Fort St. John since 2011 (Hamdan, supra note 11 at paras 15–20).

67 Cited in Kim Bolan, “Islamic State Supporter Ordered Detained by Immigration Board,” The Vancouver Sun (6 October 2017) A1.

68 An interesting question is whether Hamdan could have been subject to bail requirements to engage with those providing counselling or working with programs to counter violent extremism. In Canada (Attorney General) v Driver, 2016 MBPC 3 at para 52, the judge held that imposing a counselling requirement as part of a peace bond was an unjustified violation of section 2 of the Charter because it imposed “ideological programming” affecting “subjective belief systems upon the subject.” This decision by a provincial court was, however, not appealed.

Hamdan argued that “I was found innocent from all of these false accusations but I’m still being incarcerated” and that as a result he was suffering from post-traumatic stress disorder.⁶⁹ An RCMP threat assessment expressed concerns that Hamdan might be more dangerous than at the time of his 2015 arrest because of his sense of being victimized by the investigation and various legal proceedings,⁷⁰ something that was also affirmed in the Board Decision holding him to be a threat to the security of Canada.⁷¹

The Board considered not only the 85 Facebook posts used in the criminal trial, but a thumb drive with beheading videos that a cellmate obtained from Hamdan and cell graffiti of a Daesh flag that he apparently created. ⁷² There was also evidence from an in-custody inmate that Hamdan had threatened to blow up the RCMP headquarters in Surrey, British Columbia.⁷³ This raises the question of whether criminal proceedings and detention may in some cases be counterproductive with respect to those who hold extremist beliefs that support terrorism. The use of an in-custody informant also underlines how the immigration proceedings were similar to criminal proceedings and like them, vulnerable to miscarriages of justice.⁷⁴ An alternative approach would have been to engage in some form of CVE program that would have provided continuity and counselling for Hamdan. To be sure, the RCMP interviewed him twice before he was arrested, but this was done by four different officers and with the threat of law enforcement likely hanging over the interviews.⁷⁵

The inadmissibility hearing before the Immigration and Refugee Board featured much of the same evidence that had been used in the criminal trial. The Board accepted much of the testimony about the meaning of Hamdan’s posts and concluded that the testimony a defence expert had provided about “the many forms of jihad and the concept of the idealized Islamic State … was nuance more relevant at the criminal trial where Mr. Hamdan had only to raise a reasonable doubt regarding the meaning and intention of his posts. Here it has been only necessary to draw conclusions about the meaning of posts at the reasonable grounds to believe standard.”⁷⁶ Hamdan’s testimony that many of his references to the Islamic State referred to an idealized version of it may have contributed to the reasonable doubt that the criminal trial judge had about his intent, but they did not undermine the Immigration Board’s conclusion that the Minister had reasonable grounds to believe that Hamdan was a threat to

69 Camille Bains, “Man Facing Deportation from Canada Says Terror Accusations Left Him Traumatized,”

The Canadian Press (22 May 2018).

70 Kim Bolan, “Supporter of ISIL Threated to Bomb RCMP HQ, Board Hears,” The Vancouver Sun (3 October 2017) A8 [Bolan, “Supporter of ISIL”].

71 Canada (Minister of Public Safety and Emergency Preparedness) v Hamdan (18 October 2018), B7- 00771 at para 171, online: Immigration and Refugee Board of Canada <www.scribd.com/document/

391688003/Hamdan-B7-00771-Admissibility-Hearing-Decision-18-10-2018> [Board Decision], stating that

Mr. Hamdan is considerably aggrieved by the criminal and immigration processes that have resulted in his incarceration since 2015 that he considers to be without justification … I believe that the Minister has adequately established that this risk of Mr. Hamdan engaging in violence in the future adds to the finding that in relation to his Facebook activity he is a danger to the security of Canada.

72 Camille Bains, “Facebook Posts Were Reply to Propaganda Against Islamic State: Migrant,” The Canadian Press (23 May 2018); Board Decision, ibid at paras 149–57.

73 Bolan, “Supporter of ISIL,” supra note 70.

74 See generally Kent Roach & Gary Trotter, “Miscarriages of Justice in the War Against Terror” (2005) 109:4 Penn St L Rev 967.

75 For additional critiques of giving the RCMP the lead role in CVE programs, see Forcese & Roach, False Security, supra note 2 at 472–89.

76 Board Decision, supra note 71 at para 162.

the security of Canada: a standard that is lower than even the civil standard of a balance of probabilities.⁷⁷

Hamdan was found by the Board to be inadmissible to Canada as a “security threat” under section 34(1)(d) of the Immigration and Refugee Protection Act, defined by the Supreme Court as a serious threat “grounded on objectively reasonable suspicion based on evidence”

and involving harm that “must be substantial rather than negligible.”⁷⁸ Despite equality-based arguments from his lawyer that “dangerous speech” that “would be lawful for a Canadian citizen to engage in” should not be used to justify the deportation of a non-citizen,⁷⁹ the Board stressed that Hamdan had no qualified right to stay in Canada and that the IRPA was designed to prioritize security.

The Immigration Board, like Justice Butler, found that praise or glorification of terrorism was protected by freedom of expression. It broke Hamdan’s posts into four categories: (1) those that demonstrated support for Daesh, (2) those that “praise or glorify” acts of terrorism, (3) those that advocate violence in the form of terrorism or that constitute threats of violence not protected by freedom of expression, and (4) those that threatened Facebook employees.⁸⁰ It held that the first two categories were protected as freedom of expression and would not be sufficient grounds for the Minister to conclude that Hamdan was a threat to the security of Canada.⁸¹ For example, references to the October 2014 terrorists in Canada as martyrs and heroes and to “[a] pressure cooker is followed by another one.… Salute to the cooks” in response to terrorist acts in the US were interpreted as praise or glorification of terrorism that were not sufficient to justify a decision that Hamdan was a threat to the security of Canada.⁸² The Board distinguished support and praise of terrorism from statements that advocate

“violence in the form of terrorism” or that constitute “threats of violence” not protected by freedom of expression.⁸³ Statements held by the Board to constitute threats to Facebook employees included “[d]o you think IS is not going to get to FB offices soon … the safety of your employees !! has already been determined.”⁸⁴ The Board also held that it was not relevant that Hamdan was not charged with making threats in his posts⁸⁵ and that

[w]hether or not Mr. Hamdan had the personal ability or temperament to attack the offices of Facebook these posts threaten violence and encourage it. He admitted as much when he suggested that there is some small percentage of individuals that may be willing to conduct a Charlie Hebdo style attack on Facebook’s offices.

The use of the occasional happy-face emoticon does not moderate that threat.⁸⁶

The Board also found that Hamdan was a danger to the security of Canada to the extent that he “advocates violence … in support of the Islamic State”⁸⁷ by identifying crucial

77 Board Decision, ibid at para 10, applying Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paras 114–15 [Mugesera].

78 Board Decision, ibid at para 19, citing Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 90.

79 Bolan, “Supporter of ISIL,” supra note 70.

80 Board Decision, supra note 71 at para 47.

81 Ibid at paras 165–66.

82 Ibid at paras 85, 99.

83 Ibid at paras 165–66.

84 Ibid at paras 106–107.

85 Ibid at para 114.

86 Ibid at para 113.

87 Ibid at para 165.

infrastructure in Canada as targets for terrorist attacks and by posting “a grotesque, ‘how-to’

guide to the slaughter of people who are not followers of Islam, for no other reason [than]

that they are not followers of Islam.”⁸⁸ These conclusions were reached even though Justice Butler had reasonable doubts about the latter re-posting of an ISIS document because the RCMP had failed to capture the full post. Board Member Tessler noted that while Hamdan’s Internet support of ISIS was “different than supplying money and weapons it is nonetheless a substantial form of support that endangers Canadians.”⁸⁹ This part of the Board’s decision seems to come closer to applying the broader concept of promotion and advocacy found in the Bill C-51 offence than the more limited concept of counselling applied in Hamdan’s criminal acquittal and subsequently used in the new Bill C-59 offence.

Hamdan has continued to resist deportation to Jordan. He has argued that he will be persecuted if returned, something that is not implausible given that a number of his posts included information about Daesh’s rewards for the killing of Jordanian pilots and even the names of such pilots. This underlines the limits of using immigration law as anti-terrorism law where the ultimate remedy of deportation may implicate Canada in torture or other forms of mistreatment. Even if Hamdan is eventually deported, Canada will simply have exported its security threat. Hamdan also is claiming that he has converted to Christianity, a religion that he had embraced for almost more than ten years previously.⁹⁰ Various judicial review proceedings are ongoing. Consistent with Canada’s prior use of immigration law as anti- terrorism law in the security certificate cases, Hamdan’s deportation will be contested, uncertain, and controversial.

E. SUMMARY

This case study of the ongoing Othman Hamdan saga provides valuable context for better understanding the challenges and wisdom of criminalizing speech related to terrorism.

Unfortunately, it does not appear to have figured in the Parliamentary debate on Bill C-59.

The technological challenges of capturing the full content and context of speech, including re-postings on the Internet are great. The failure of the RCMP to capture Hamdan’s full posts and conclusions that some of the most critical posts were re-posting the words of others influenced his acquittal. They seemed to play much less a role in the immigration proceedings that found him to be a threat to the security of Canada. The very different standards of proof used in the criminal and immigration proceedings also help explain the differing results. They raise serious issues about the fairness of the latter especially when applied to the drastic sanction of withdrawing refugee status and deporting Hamdan to Jordan.

Despite these differences, both proceedings similarly concluded that expression of support and praise for acts of terrorism was within the bounds of freedom of expression. This suggests a certain consensus about core freedom of expression values and that an expanded offence that prohibited glorification of terrorism would violate freedom of expression and be difficult to justify under section 1 of the Charter. The Immigration Board found that the majority of Hamdan’s posts that expressed support for Daesh and its acts of terrorism were

88 Ibid at para 142.

89 Ibid at para 168.

90 Hamdan, supra note 11 at paras 15–19.